Religion and Psychiatry in the Sexual Orientation Change Therapy Cases and the Establishment Clause Defense

Abstract

In Pickup v. Brown, Welch v. Brown, and King v. Christie, plaintiffs challenged laws prohibiting mental health professionals from engaging in sexual orientation change efforts (SOCE) within the scope of their licenses. They argued (inter alia) that the laws violated their speech rights by prohibiting them from engaging in certain talk therapies, and interfered with their free exercise of religion. The Ninth and Third Circuits held that the behavior involved in these cases was either (a) not protected speech, or (b) speech subject to a lesser degree of protection, which the state had a sufficient interest in preventing.

In future cases, however, these arguments may not prove enough. The limits of protected speech under the First Amendment have expanded in recent years. In several cases, courts have held that various kinds of speech in medical contexts receive constitutional protection. It is therefore possible that future courts may hold that talk therapy constitutes fully protected constitutional speech.

To address that eventuality, I explore the pedigree of the therapies that undergird SOCE. I show that SOCE is best understood as a form of religious ministry. States can therefore argue that permitting SOCE within the scope of state issued medical licenses would endorse those practices and undermine the states’ compelling interest in preventing religious establishment. While this argument is not unassailable, I believe it would ultimately withstand scrutiny.